Gillers, Greenberg, and Rascoff discuss prosecuting torture

The October 7 installment of the NYU Law Forum, “Prosecuting Torture: How High Should It Go?” began with the showing of a 10-minute documentary, Tortured Law, which argued for the release of the Justice Department’s report on the “torture memos” written during the Bush administration, and for a full investigation of the architects of the U.S. government’s post-9/11 interrogation tactics. Introduced by Nan Aron, president of Alliance for Justice, a national association of public interest and civil rights organizations, the film was followed by a panel discussion that included Stephen Gillers, Emily Kempin Professor of Law; Karen Greenberg, executive director of the Center on Law and Security; and Assistant Professor Samuel Rascoff. The event was moderated by Vice Dean Barry Friedman.

Gillers said he was not highly optimistic about the possibility of punishment for those involved in policies that led to torture, including John Yoo and Jay Bybee, both lawyers in the Department of Justice’s Office of Legal Counsel during the Bush administration, and then-Vice President Dick Cheney’s legal counsel David Addington, all of whom were involved in drafting what became known as “torture memos.” Bybee, then assistant attorney general for the Office of Legal Counsel, is now a judge on the U.S. Court of Appeals for the Ninth Circuit.

“Being a lawyer should bring with it additional obligations and risk of additional sanction” as opposed to immunity, Gillers said. “Further, when I learned that the primary author of the memos [Yoo] was a law professor at Berkeley, I was doubly offended that this person who wrote these memos was teaching new lawyers.... It was apparent to me that this is junk law.... And then when I learned that Jay Bybee was on the Ninth Circuit, that tripled my outrage.”

Pointing out that the memos fail to acknowledge opposing legal arguments, Gillers voiced his opinion that in a private client situation the advice given in the memos would constitute malpractice. While criminal charges might not materialize, he said, another possibility might be disciplinary proceedings by the respective bar associations of the states in which the lawyers are admitted to practice. But that scenario presents its own difficulties, Gillers added, given that Pennsylvania’s state bar association has already pointed out, in reference to Yoo, that they lack subpoena power over the Justice Department. Also, “Yoo apparently still believes that everything he wrote was true. He has not been shy about emphasizing that. Assuming that he didn’t reverse-engineer it to say what he doesn’t believe because that’s what Addington and Cheney wanted, then the only allegation that could be leveled against him is incompetence, and frankly, lawyers are not disciplined for incompetence as a rule.”

Greenberg recalled the difficulties leading up to the publication of her book The Torture Papers. “If you could know the kind of attack we came under before publication for using the word ‘torture’ in the title—it was unbelievable. I was threatened with everything.” Greenberg, who had been asked to say “enhanced interrogation techniques” instead, observed that, five years later, most of the nation has come to accept the label “torture” for acts that the government sanctioned. But in contrast to the earliest months of the Obama administration, she said, there is no longer a sense that people will be held accountable for the deeds of the previous administration; according to polls, more than 50 percent of Americans would condone the use of torture in certain circumstances. The reason for that statistic, she added, is that for eight years there has been no coherent leadership on the issue.

Greenberg advocated a thorough investigation for purposes of historical record. “This needs to be documented—who did what in what period of time, and it has to be tied to documents.... It’s not okay to say, ‘He said, she said.’ There’s a lot of historical record. Whatever it is, let’s look at it.” She also pointed to the Department of Justice in particular, and the legal profession as a whole, as the entities who have suffered the most from the utilization of torture. Calling the Justice Department “emasculated” by Bush’s military order stripping it of authority over enemy combatants and instead empowering the Pentagon, Greenberg added, “The legal profession needs to rethink how it wants to monitor itself and how it wants to tell its story about its relationship to the balance of power in Washington.”

There were two broad reasons, Rascoff said, to prosecute officials: to vindicate moral and social values while communicating a sense of moral outrage, and to deter officials from engaging in similar conduct in the future. Of the second reason, Rascoff acknowledged that the intelligence community has traditionally experienced cycles of abuse followed by prosecution and oversight followed by further abuse, without a clear institutional memory to dissuade officials from repeating the past. The best way to avoid torture, he said, was to have a great deal of good intelligence. Without sufficient sources on the ground to collect information, Rascoff said, “Torture functioned in the years immediately after the 9/11 attacks as a kind of lazy or poor man’s form of intelligence.... It was a quick and awful way to transform, in a kind of sick exchange economy, pain into intelligence or information.”

But even if improvements in intelligence-gathering help to minimize the possibility of torture, Rascoff added, there is still a dark side. “It’s one thing to say that the antidote for torture is intelligence, but let’s be clear about what we’re saying: using murky methods, using all sorts of forms of psychological coercion, using methods that are in violation not necessarily of domestic law but very obviously in violation of other countries’ laws, is part of the solution to the problem of torture.”